B. R. Devaki Amma v. State of Kerala — 1989 DIGILAW 170 (KER)

JUDGMENT N. Sivaraman Nair, J. 1. The interplay of R.5 and 37 Chap.14A of the Kerala Education Rules (for short 'the Rules' ) is the subject matter of this Original Petition. The facts are brief and the points are covered by a Division Bench of this Court. 2. Petitioner commenced service as an untrained Graduate Teacher in an aided school under the Management of the 5th respondent, on 17-6-1961. The 6th respondent was appointed earlier on 18-7-1980. The untrained service of both were duly approved. The District Educational Officer, Pathanamthitta, in Ext R6(a) order dated 9-6-1962. selected the 6th respondent, the petitioner, and two other teachers of the same school for B.Ed. training. The 6th respondent was the first among the four teachers. The teachers joined the training course on 23-6-1962. After completion of the course, they rejoined service on 4-6-1963. The results were published on 22-6-1963. All the four teachers commenced continuous qualified service from the same date In two seniority lists published in 1966 and 1974, their ranks were arranged in the order of age, the older being treated as senior. A seniority list of teachers in the schools under the management of the 5th respondent as on 1-4-1985 (Ext. R6 (b) was provisionally approved on 23-7-1985. In that list the 6th respondent was ranked as No. 10 whereas the petitioner was ranked as No. 19. However, the Manager appointed Smt Vanajakshi Amma who was rank No. 12 in Ext. R6 (b) seniority list, as Headmistress when a vacancy arose in one of the schools managed by the 5th respondent. The 6th respondent filed a petition before the Deputy Director of Education, Pathanamthitta on 5-6-1987 challenging that appointment and the order of the District Educational Officer granting approval to that appointment. In Ext.P1 order dated 7-11-1987 the Deputy Director set aside the approval of the appointment of Smt. Vanajakshi Amma and directed the management to appoint the Headmaster in P. G. M. T. T. 1. Parakkode strictly in accordance with Ext.R6 (b) seniority list. Smt. Vanajakshi Amma filed an appeal petition on 24-11-1987 before the Director of Public Instruction. She also filed O P.9848 of 1987 challenging Ext. P1 order. This Court disposed of the Original Petition by judgment dated 30-11-1987 directing the 2nd respondent to hear and dispose of the appeal. In Ext. Parakkode strictly in accordance with Ext.R6 (b) seniority list. Smt. Vanajakshi Amma filed an appeal petition on 24-11-1987 before the Director of Public Instruction. She also filed O P.9848 of 1987 challenging Ext. P1 order. This Court disposed of the Original Petition by judgment dated 30-11-1987 directing the 2nd respondent to hear and dispose of the appeal. In Ext. P2 dated 12-1-1988, the Director held in favour of Smt. Vanajakshi Amma for the reason that she was older and therefore senior among the four teachers whose continuous service commenced on the same day in 1963. The 6th respondent filed a revision petition before the State Government on 29-2-1988. The State Government allowed that revision holding that the 6th respondent whose date of first appointment was earlier, was entitled to seniority above Smt. Vanajakshi Amma and the petitioner. In the meantime, Smt. Vanajakshi Amma retired from service on 31-3-1988. The petitioner has been working as Teacher in charge. In the meantime, the State Government had, under Ext.R6(c) order dated 7-3-1988, stayed all proceedings in furtherance of Ext.P2 order. The appointment of the petitioner as Headmistress was not, therefore, approved. 3. R.5 Chap.14A of the Rules as it stood prior to its substitution by notification dated 4-7-1972 which was published in Gazette dated 18-7-1972 reads as follows: "5. unqualified teachers appointed under R.2 and who acquire the prescribed qualifications subsequently shall have preference for appointments to future vacancies in schools under the same Educational Agency: Note :- If more than one person acquire the prescribed qualifications subsequently, preference as among them shall be given to the person who acquire the prescribed qualification on the same date, the person with the earliest date of first appointment as an unqualified hand shall be preferred." It is obvious that the 6th respondent had the earliest date of first appointment and was, therefore, entitled to preference when the results of B. E. d. Examination were published on 22-6-1963. It is true that R.5 has been subsequently amended and the rule as it stands at present applies only to unqualified teachers who were appointed after 2-2-1965. R.37(1) Chap.14A provides that seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. R.37(1) Chap.14A provides that seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. Sub rule (2) of that rule provides that: "(2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date to first appointment is also the same, seniority shall be decided with reference to age, the older being the senior." It is obvious that Sub rule (1) refers only to qualified service sub rule (2) refers to the date of commencement of continuous service as decisive of seniority. If more teachers than one has the same date of commencement of continuous service, seniority has to be decided with reference to the date of first appointment. Only if the date of first appointment also is the same, seniority has to be determined with reference to age, older being the senior. In the present case, the Government found that the date of commencement of continuous service is the same in the case of the petitioner and the 6th respondent. It then found that among them, the 6th respondent has the earliest date of first appointment and therefore, held her to be senior. Government also decided that it was not necessary to go into the question of age since the date of first appointment was not the same. That view is fully supported by the decision of a Division Bench of this Court in W. A. 376 of 1988. The Division Bench held that even irrespective of the provisions in R.5 and 37 of Chap.14A of the Rules. " .................. Determining relative seniority with reference to the date of first appointment when the date of continuous service is the same is a good principle of law. It is precisely for this reason that the same has been incorporated by the rule making authority in the year 1978. " .................. Determining relative seniority with reference to the date of first appointment when the date of continuous service is the same is a good principle of law. It is precisely for this reason that the same has been incorporated by the rule making authority in the year 1978. Though that rule in terms may not apply to the facts of the case as it has come into force subsequent to the relevant date, as it incorporated a general principle of law, we are inclined to take the view that the same principle must govern the determination of relevant seniority of the appellant and respondents 3 and 4. If that principle is followed, it follows that the appellant will be junior to respondents 3 and 4, although the date of continuous service is the same as the first appointment of respondents 3 and 4 was much earlier than that of the appellant. Hence the question of determining the seniority with reference to the age does not arise in this case." The same principle shall govern this case. In that view, the Original Petition has only to be dismissed. I do so. In the circumstances of the case, there will be no order as to costs.